A classic conflict scenario over a deceased estate is when the second wife inherits most, or all of the estate, leaving the children of the deceased with what they consider to be less than their fair share.
This scenario played out very publicly in Australia in 2019, when the youngest daughter of former prime minister Bob Hawke, Rosslyn Dillon, made a $4 million claim against her late father's estate, challenging the right of his second wife, Blanche d'Alpuget, to receive the bulk of the $18 million inheritance.
In his will, Mr Hawke had left $750,000 to each of his three children from his late first wife Hazel, and the same amount to his stepson. His second wife, Blanche d'Alpuget, received the balance of his estate, including a $9 million mansion and a $3.6 million apartment.
Daughter alleges she was not adequately provided for in her father's will
The only child of Mr Hawke's to contest the will, Ms Dillon argued her late father had failed to make adequate provision for her from his multi-million dollar estate.
Lodging an affidavit in support of her case, Ms Dillon claimed she was living in poverty, renting a cockroach-infested flat and barely able to meet her day-to-day living expenses. Although she was once a heroin addict, Ms Dillon stated she has not used drugs since she attended a rehab clinic in the US many years ago.
A 206-page annexure lodged with the Supreme Court revealed that Ms Dillon had also inherited $300,000 from her mother, Hazel Hawke. While she claimed that she gave this money to her son, this reduced her disability support pension.
While the court may consider the allegations raised by a claimant, it doesn't have to. Under section 60(2)(p) of the NSW Succession Act 2006, it is up to the court to consider any matter it considers relevant.
There is also a risk of a costs order being made against the claimant, although this is mitigated partially by a large estate.
Inheritance laws generally favour surviving spouse over adult children
Before the claim had settled, I was asked to provide commentary for a news article about the likelihood of Ms Dillon's success in her challenge of her father's will.
As I stated in the article, there was a good chance that Ms d'Alpuget would maintain her share of Mr Hawke's estate, as inheritance laws look more favourably upon a second wife than they do upon adult children.
The court almost always regards the surviving spouse as the primary object of obligation of the deceased.
Comparatively, any adult children are generally a rung down in the pecking order. (See The inheritance battle for knockabout PM Bob Hawke's millions is set to get very messy, Daily Mail, 23 November 2019.)
In saying this, the prospects for adult children are far greater if the estate is a large one. So, in this case, there was an increased chance of Ms Dillon successfully challenging her father's estate, which had been left mainly to his second wife.
Legal criteria for challenging an estate
Under section 57 of the Succession Act, certain people can challenge an estate within 12 months of a person dying. This includes spouses, biological children, carers, former spouses or de factos, grandchildren and even friends of the deceased.
The latter categories (apart from spouses and biological children) must establish they were members of the household and were either wholly or partially dependent on the deceased, and that the deceased had an obligation to provide for them in their will.
The financial needs of the claimant are also strongly considered, but courts are less inclined to make provision for adult children who are well established and financially secure.
While the court may consider an adult child's inheritance to be adequate provision, it could also examine whether it is fair given the size of the estate.
Ms Dillon's claim against her father's estate was settled in May 2020. The terms of the settlement remain confidential.
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